Sachindra Mohan Das Gupta vs District Magistrate and Collector in Tripura and others

Brij Narain, J.C.

This is an application under Art. 226 of the Constitution of India on behalf of Sri Sachindra Mohan Das Gupta for obtaining a writ of mandamus, certiorari or any other appropriate writ quashing the order of the Sadar S. D. O. opposite party No. 2 dated 4-6-1954 whereby possession of the dar-talut covering Ishanpur Tea Estate under Ghaliarjala kayemi taluk No. 134, parsana - Ba(sic)a in Sadar Division, Tripura State, was for(sic)y taken on 21-6-1934 from. the petitioner and his manager Sudhir Ranjan Roy ana (2) another order made by the S. D. M. Sadar opposite party No. 3 dated 6-7-1954 for the illegal arrest of the petitioner under which the petitioner was actually arrested on 8-7-1954.

It has also been prayed that the petitioner be reinstate in his possession over the said dartaluk covering lsnanpur Tea garden. Lastly it has been prayed that an appropriate order be passed cancelling and quashing specifically the alleged final assessment order dated 17-7-1953 in consequence of the survey settlement operation of the petitioner''s dar-taiuki lands as this order was passed in pursuance of an ex parte order No. 728-29. dated 6-3-1953 of the Revenue section of the District Magistrate and Collector''s office which had. been referred to in the illegal and ultra vires order of the Sadar S. D. O. dated 4-6-1954.

Shri Brojendra Kumar Das Gupta was the original owner of the kayemi taluk No. 154. This kayemi taluk was of 383 drones or 2400 acres in area and it was situated in village Chaliarjala, pargana-Bamutia, Sadar, Tripura. In 1917/1918 A. D. this land was leased out by Shri Brojendra Kumar Das Gupta in dar-taluk to Ishanpur Tea Company Limited who set up machinery, etc., there.

Shri Brojendra Kumar Das Gupta was indebted and so his estate was taken under the management of the Court of Wards opposite party No. 4 in 1927 A. D. Isnanpur Tea Company fell in arrears of rent and the estate was sold and purchased by the Government of Tripura in 1932 A.D. for Re. 1/- only and thus dar-taluki rights were merged with the superior rights which were with the Government of Tripura. In 1933 A. D. the estate was again leased out in dar-taluki right to Sreemati Sarala Sundari Devi Das Gupta wife of Shri Brojendra Kumar Das Gupta.

There were tenants in 27 drones of land at this time and so the remaining land was let out to Sreemati Sarala Sundari Das Gupta in dartaluki rights on Rs. 3000/- per annum and the machinery, etc., were;also sold away to her by the Court of Wards. It was at this stage in 1933 A. D. that the present petitioner and Sreemati Sarala Sundari Das Gupta entered into a contract for carrying on tea business and the petitioner was the financing party.

Later on in 1934 A. D. (corresponding to 1344 T. E.) Sreemati Sarala Sundari Das Gupta sold away her dar-taluki rights to the petitioner through the sale deed dated 13-4-1344 T. E. for Rs. 25,000/- plus all other liabilities then existing against Sreemati Sarala Sundari Das Gupta. The petitioner has since then been carrying on tea business and paving rent (Rs. 3000/- per year) royalties, etc., uptil 1358 or 1359 T. E. and rent was throughout received by the State of Tripura (Court of Wards) from him thus recognising him as owner in possession.

Shri Brojendra Kumar Das Gupta died in 1944 A. D. and his only son Amarendra Kumar Das Gupta succeeded him and he became the ward. He also admitted the petitioner as Dartaluki rights holder.

In 1350 T. E., at the instance of the Government of Tripura a survey operation began and claims were invited and the petitioner also filed claims and on 18-6-58 T. E. the settlement officer gave a decision that only over 27 drones and odd land, the tenants of the talukdar were in possession and the remaining 355 drones of land were in dar-taluk and in this area the tenants of the dar-talukdar would be deemed to be in possession.

The Court of Wards filed an appeal before the Revenue department against this decision and on 20-9-1950 A. D. it was held that 93 drones were in possession of the tenants of kayemi taluk and the remaining 290 drones were to appertain to dar-taluk as this land was in khas possession of the dar-talukdar.

Later on Parvati Charan Dey, Amin reported against the petitioner and the settlement officer by means of the order dated 17-12-1950 cancelled the petitioner''s name as owner from the khatian and his name was continued merely as "possessor by virtue of purchase", in the remarks column in the touji. The petitioner then brought declaratory suit No. 12 of 1951 in Sub-Judge''s Court, Agartala, that the orders dated 20-9-1950 and 17-12-1950 referred to above were illegal and ultra vires and that they should be set aside.

It was held on admission of the parties on 21-5-1952 in this suit that the petitioner''s rights were not adversely affected by these entries and so the suit was dismissed as there was no cause of action for it as both title and possession of the petitioner over the disputed land were admitted by the Government.

The military took possession of this tea garden in 1944/45 A.D. and a vegetable farm was started here even though there was no formal requisition. The military authorities however abandoned the land later on and the petitioner claimed compensation for this occupation and Rs. 28,000/- were sanctioned by the Dewan of Tripura State on this account. The petitioner contended that the amount awarded was inadequate but he accepted a sum of Rs. 12,000/- under protest.

The petitioner later on brought suit No. 23 of 1951 in the Court of the Sub-Judge, Agartala, and subsequently this suit was transferred to the Court of the District Judge and it was given numbers 23 of 1952 and 3 of 1953 and Rs. 1.70.000/- were claimed as compensation. This suit was decided on 25-3-1955 and it was decreed to the extent of Rs. 16000/- against the Tripura Government on admission and the money was to be paid to the petitioner within three months but no payment has been made so far and no appeal was filed against the decree dated 29-3-1955 until the time of the institution of the present writ petition.

On 1-6-51 the Rehabilitation Department. Government of Tripura. requisitioned 1178.40 acres of this land for refugees. On 22-10-1952 another 174.32 acres of land were requisitioned and on 13-10-1953. 35.93 acres of land were further requisitioned and thus a total area of 1388.65 acres was requisitioned out of an area of 290 drones which comes to 1865 acres.

After the dismissal of suit No. 12 of 1951 another survey one-ration was begun by means of the order dated 6-3-1953 regarding 290 drones land in possession of the petitioner and printed leaflets are alleged to have been distributed asking the tenants not to pay rent to the dar-talukdar and proclamation to the above effect is alleged to hove been made by beat of drum.

The petitioner generally resides in Calcutta and on coming to know of the above mentioned unauthorised acts he filed a petition on 27-11-1952 against the Court of Wards in the Court of the "District Magistrate. Tripura. It was ordered on this petition on 28-11-1952 that further action be stayed and a report was also called for but the Court of War as appears to have ignored this order.

Another order was passed on 24-4-1953 by which further action was stayed until the decision of the civil suit but this order was also not obeyed. On 9-4-1954 an ex parte order was parsed by the District Magistrate to the effect that the petitioner had no title and thus the order dated 24-4-1953 was vacated even though a civil suit was pending between the parties.

On 4-6-1954 when suit No. 23 of 1951 was still pending before the District Judge, Agartala, the S.D.O. Sadar opposite party No. 2 passed an order for taking possession over the Ishanpur tea estate and the Tahasildar, Simna Katchery was directed to take possession on behalf of the Court of Wards and an Amin was deputed to execute this order.

In pursuance of this order the opposite parties took possession on 26-6-1954 of 290 drones in spite of the objections raised by the petitioner''s manager who was arrested by the police on 7-7-1954. The petitioner when he came from Calcutta was also arrested by the police on 8-7-1954 from his quarter but was released on ball on 9-7-1954. He filed petitions on 27-10-1954 and 10-12-1954 demanding restoration of possession but these petitions were rejected on the ground that the question of title was still sub judice in Civil Court.

On 2-2-1955 the petitioner filed another application that the status quo should be maintained as the petitioner''s possession had not been challenged but no orders were passed thereon. On 3-3-1955 yet another application was filed by the present petitioner demanding orders but no orders were passed until the filing of the present writ petition on 1-4-1955.

The tea department and Central Excise Department are alleged to have been recognising the petitioner as owner in possession of this tea estate throughout and all manufacturing and export, licenses have continued in his name.

The tea in stock is alleged to have been sold away by the opposite parties in spite of this Court''s order dated 26th May 1955 and as the opposite parties refused to restore possession to the petitioner the present writ petition has been instituted on the ground that the fundamental rights of the petitioner under Arts. 10 (1) (f) and 31 of the Constitution of India have been infringed.

The opposite parties Nos. 1, 2. 3 and 5 have contended that the petitioner has no cause of action and the petition is frivolous, mala fide, speculative and it is further barred by estoppel, acquiescence and waiver. Shri Manindra Kumar Das Gupta is said to be a necessary party to this petition. It has also been contended that the points raised in the petition involve intricate questions regarding determination of rights, title and interest of the parties and so it is neither possible nor expedient to adjudicate the case in a summary manner.

According to the opposite parties the petitioner could easily establish his right and title to the Ishanpur tea garden by filing a regular civil suit and as an equally efficacious alternative remedy was available to him the present Writ Petition should be dismissed. As the survey operation of the dartaluki lands were completed and final. assessment was made on 27-7-1953 after due service of notice under Ss. 10 and 13, Tripura Tenancy Act, and Assessment Rules and there was no appeal or motion (sic) the final assessment, the petitioner had no fundamental right existing which could possibly be infringed.

The stock of tea which had been sold on 31-5-1955 at about 5 p.m. belonged to Shri Jagadish Chandra Danda who got possession of the tea garden with effect from 1-7-1954 and according to the opposite parties the petitioner had no stock of tea in the garden when the Court of Wards received possession of the garden.

The opposite party No. 4 has practically raised the same pleas and it has also been contended that the petitioner is guilty of deliberate suppression of facts and as this Court is not a Court of appeal or revision, the orders passed by the revenue authorities cannot properly be set aside in this writ petition.

According to the Court of Wards, the petitioner has also been guilty of laches and as no previous demand had been made by serving a notice on the opposite parties, the present application for writ of mandamus should be rejected.

It has been contended that the present writ petition should be rejected as the petitioner has prayed for all types of writs which can be granted under the provisions of the Indian Constitution and so it must be inferred that he has not come to this Court with a definite case and a definite prayer.

There is no doubt that in writ petitions the petitioner should come to Court with a clear case and definite allegations, vide - Raj Narain Singh Vs. Atmaram Govind and Another, , but even if the present petitioner has asked for other writs besides the writ of mandamus, this Court has ample power and very wide discretion in the matter of framing writs to suit the exigencies of this particular case. It has been laid down by Mukherjee J. of the Supreme Court (now C. J.) in - Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, :

It would appear from the language of Art. 32 of the Constitution that the sole object of the Article is the enforcement of fundamental rights guaranteed by the Constitution. A proceeding under this Article cannot really have any affinity to what is known as a declaratory suit.

Any way. Art. 32 of the Constitution gives us very wide discretion in the matter of framing our writs to suit the exigencies of particular cases, and the application of the petitioner cannot be thrown out simply on the ground that the nroper writ or direction has not been prayed for.

14-15. In - Dr. Satish Chandra Bhattacharjee and Another Vs. R.N. Bose and Others, , it has been laid down that while it is desirable that the prayers in a petition under Art. 226 of the Constitution should be as specific and definite as they can be, the Court is not powerless to afford necessary reliefs in proper cases.

The present petitioner has prayed for a writ of mandamus or any other appropriate writ or order and later on, other writs have also been mentioned in the prayer and so I think the present petition can be deemed to be an application for obtaining a writ of mandamus against the opposite parties and the present petition should not be dismissed merely because the petitioner has mentioned a number of other types of writs to be granted if the Court thinks it proper to do so. I. therefore, see no force in this contention of the opposite parties.

The next contention put forward on behalf of the opposite parties is. that the present petition for obtaining a writ of mandamus cannot be legally allowed as the petition did not make any demand for relief from the authorities against whom he has made the present application. There is no doubt that in a case of a writ of mandamus such a demand should, be made vide - Halsbury''s Laws of England (Hail-sham edition), Volume 9 page 771 - where the law is stated as follows on this point;

As a general rule the writ will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that such demand was met by a refusal: Vide also - ''Sheoshankar v. State Govt. of Madhya Pradesh'', AIR 1951 Nag 58 (FB) (D); - Annapoorna Farming and Fishery Ltd. Vs. State of West Bengal and Others, ; - Surendra Nath Das and Others Vs. The State of West Bengal, .

The petitioner has mentioned in paras 12, 19 and 20 of his petition that notices in the form of application demanding possession over the tea garden were given to the manager, Court of Wards and the District Magistrate, Tripura, on 10-12-1954, 2-2-1955 and 3-3-1955 before the present writ petition was filed in this Court but the opposite parties, did not give any reply and no orders were passed before 1-4-1955 and further orders for sale of tea which was in his stock had been issued.

These applications clearly show that after the petitioner was released on bail after his arrest on 8-7-1954 he gave the application dated 10-12-1954 demanding restoration of possession. On 2-2-1955 he again demanded restoration of his status quo and even though this application was heard no order was passed thereon.

The third application dated 3-3-1955 was filed with the same object for getting justice but no orders were passed and the petitioner was deprived of his valuable estate and so he was compelled to bring the present writ petition. Orders are stated to have been passed on 24-3-1955 to the effect that as the matter was sub judice delivery of possession could not be made.

As such it becomes clear that the present petitioner did make formal demands and so the present petition cannot be deemed to be defective on this ground. In - ''Shambhu Dayal v. Patiala and East Punjab States Union'', AIR 1952 Pepsu 152 (G), it was held that where the petitioner had made repeated representations which constituted demand for justice before petitioning for a writ of mandamus, he had complied with this requisite.

In - Indian Quarter Master''s Union and Others Vs. P.R. Dutt and Another, , it was held that in order to succeed in an application under Art. 226, the petitioner should show that there was a demand of justice and refusal thereof. But it is not necessary that the word "refuse" or any equivalent to it should be used.

It is enough to show that the party withholds compliance and distinctly determines not to do what is required of him. Refusal may be inferred from conduct and reliance was properly placed on - In Re: Jatindra Mohan Sen Gupta, .

In - Shiv Narain Vs. Regional Transport Authority, Jaipur Region, Jaipur and Another, , where the petitioner had filed several applications requesting Regional Transport Authorities to consider his application and no action was taken it was held that it could not be said that the applicant failed to make a demand for justice from authorities before coining to High Court.

In view of the rulings cited above I think the applications referred to above can be deemed to be sufficient notice and the present writ petition cannot be deemed to be bad for want of notice for demand of justice prior to the institution of the writ petition. The decision of this Court in writ petition No. II of 1954 dated 10.06.55 has, therefore, no application to this case. This point should also be, therefore, decided against the opposite parties.

The third contention put forward on behalf of the opposite parties is that the present petitioner had an equally convenient and efficacious alternative remedy open to him in the form of a declaratory suit and so the present petition should be rejected. Reliance has been placed on - ''Amritlal Das v. Govt, of Assam'', AIR 1954 Ass 152 (K), in which it has been held that remedies made available by Art. 226 may not be permitted to be utilized as substitutes for ordinary remedies available at law.

The extraordinary jurisdiction of the High Court under this Article may be invoked in cases where no adequate remedy is available to an aggrieved party and a writ or order under Art. 226 alone affords a convenient and effective mode of redress. Thus where an adequate and effective relief can be obtained by a suit, a necessary condition for the exercise of this jurisdiction is lacking.

Mere defect of jurisdiction in the impugned order, assuming that it does exist, does not make it obligatory on the Court to exercise the jurisdiction under Art. 226.

The petitioner has been deprived of his valuable tea estate and he was arrested also although later on he was released on bail. His repeated applications for possession being restored to him were not heard and as he is now under straitened pecuniary circumstances it has been urged that the remedy of a regular suit was not at -all convenient for him nor could it be equally efficacious for the opposite parties threatened to sell away his stock of tea (and this stock was actually sold away on 31-5-1959 in spite of an order to the contrary by this Court) and so a mere declaratory suit could not afford the petitioner the relief which would be available to him in a writ petition under Art. 226 of the Constitution.

In - ''Valji Korji v. Collector of Kutch'', AIR 1954 Kutch 11 (L), it has been held that it cannot be laid down as a general proposition that the High Court will not issue a writ provided in Art. 226 of the Constitution when a petitioner has other remedy available to him.

The real question to be considered in such a case is whether the alternative is equally convenient, speedy, beneficial and effectual. and if the alternative remedy by way of suit is not equally efficacious the High Court will issue a writ under Art. 226. especially so, if the issue of writ will be speedier and more beneficial than the remedy by way of suit.

In - ''Buddhu v. Municipal Board, Allahabad, AIR 1982 All 753 (PB) (M), it has been laid down that where it is desirable that some general question of public, importance Should be speedily decided and the parties should not remain under suspense lor a long time for its determination, the High Court can entertain the petition under Art. 226 even though the petitioner has another remedy of a suit, (23) Chowdhury J. C; has observed at page 10 in - Chamba Valley Transport Ltd. Vs. State of Himachal Pradesh, :

The plea that the petitioner had other adequate remedy open to it has no force. There is no other statute but the Constitution which prescribes the remedy for the enforcement of fundamental rights, and the power of enforcement of. those rights has been conferred on only the Supreme Court under Art. 32 and the High Courts under Art. 226. There is, therefore, no other adequate remedy open to a person whose fundamental right has been infringed.

The mere fact that the High Court would not ordinarily issue a writ where there exists an alternative remedy equally efficient and adequate is no ground for assuming that the High Court has no power to issue writs in such cases. In other words the fact that it ordinarily does not issue writs in such cases is not on account of want of jurisdiction but only on the ground of expediency.

24-25. In - Rakhaldas Mukherjee Vs. S.P. Ghose, , it was held that whether the alternative remedy is equally efficacious or adequate is a question of fact to be decided in each case. In the present case I have shown above that the petitioner could not have got the relief speedily in a regular suit and then he would be obliged to arrange for a very big sum of money for filing a suit which he can ill-afford at present and so the remedy by way of suit would not be deemed to be equally convenient either.

I am, therefore, of opinion that the present writ petition cannot be dismissed on the ground that an equally convenient and efficacious alternative remedy was available to the petitioner. If the fundamental rights of the petitioner have been effectively infringed this Court has certainly got the jurisdiction to entertain the present petition.

It has next been contended that the present petition should be dismissed because the petitioner has been guilty of suppression of mate, rial facts and also of laches and delay. It has been contended that the survey operations had, been concluded in 1350 T. E. (corresponding to 1940 A. D. and the present writ petition has been brought on 1-4-1955.

The final assessment order in consequence of the survey settlement operation of these dartaluki lands was made on 6-3-1953 but the petitioner did not file any appeal and as he has. suppressed facts in this connection the petition is contended to be bad in law vide - ''Zikar v. The Government of Madhya Pradesh'', AIR 1951 Nag 16 (P).

It has not been. seriously disputed that there was a survey operation at the instance of the Tripura Government in 1350 T. E. and the present petitioner filed a claim in that proceeding and oh 18-6-58 T.E. there was a decision by the settlement officer to the effect that only in 27 and odd drones the tenants of the talukdar were in possession and the remaining 355 drones and odd were in dar-taluk.

The Court of Wards went in appeal to the revenue department and on 20-9-1950 a fresh. judgment was "given by which 93 drones of land was deemed to be In possession of tenants of kayemi taluk and the remaining 290 drones were held to appertain to dar-taluk as this land was held to be in khas possession of the dar-talukdar.

The petitioner brought declaratory suit No. 12 of 1951 in Sub-Judge''s Court, Tripura, contending that the orders dated 20-9-1950 and 17-12-1950 by which the petitioner''s name had been merely shown as "possessor by virtue of purchase" were illegal and ultra vires and it was held on 21-5-1952 that the petitioner''s rights were not adversely affected by these entries and as this fact was admitted by the Government also in Court, the suit was dismissed.

The petitioner thus acquiesced in the position that only 290 drones of land were in the dar-aluk. It cannot, therefore, be said that the petitioner has concealed any material fact in the present petition and so the ruling reported in - Asiatic Engineering Co. Vs. Achhru Ram and Others, , which lays down that a person obtaining an ex parte order or a rule nisi by means of petition for exercise of the extraordinary powers under Art 226 of the Constitution must come with clear hands, must not suppress any relevant facts from the Court, must refrain from making misleading statements and from giving incorrect information to the Court does not apply to the present case so Ear as the survey operations 1350 T. E. are concerned.

The ruling reported in - AIR 1955 110 (Nagpur) , on which reliance has been placed by the opposite parties has also no application to this case for reasons given above. Regarding the alleged final assessment order dated 17-7-1953 it has been stated in para 1 of the application of the petitioner dated 2-8-1955 that the said assessment was made in pursuance of an ex parte order No. 728-29 dated 6-3-53 of the revenue section of the District Magistrate and Collector''s office.

The petitioner was not given any notice and he has stated in para 2 of this petition that he is not aware as yet who passed that order and under what authority and capacity. It further appears that even though land has been entered in the names of third parties the major portion of the land in question is in possession of the Relief and Rehabilitation Department. Government of Tripura being actually occupied by the refugees'' since its requisition on 1-6-51, 22-10-51 and 13-10-51.

Lastly it is established from this record that this alleged final assessment order was made in violation of the District Magistrate''s order dated 28-11-52 followed by his final order passed on 24-4-53. All these facts have not been challenged by the opposite parties by means of any reply or counter affidavit and so this alleged final settlement cannot stand in the way of the present petitioner.

As the present petitioner was not informed of this order it cannot be said that the present petition should be dismissed on account of delay or laches. This point is also, therefore, decided against the opposite parties.

According to the opposite parties Sri Manindra Kumar Das Gupta is the present lessee and as he has not been made a party to this petition, the petition should be dismissed. It has further been urged that according to the petitioner on allegations in para 46 of the petition one Naba Ranjan Roy is the lessee and so he was also a necessary party.

The opposite parties have not produced any registered lease or any other writing in favour of Sri Manindra Kumar Das Gupta or Jagadish Chandra Danda and as, it has been merely alleged vaguely that Manindra Kumar Das Gupta has been leased out the tea garden temporarily and not for a specified period of time until further orders and so the present petitioner could not have any knowledge of such a temporary lease.

The present petition cannot, therefore, be deemed to be, in any way, defective on account of non-joinder of any temporary occupier for an indefinite period. Similarly the present petition will not be in any way defective for non-joinder of Naba Ranjan Roy as he has no adverse interest against the petitioner. There is no regular lease in his favour and he only appears to be a temporary worker vide the agreement deeds dated 22-12-53 A.D. and 23-12-53 A.D.

I, therefore, see no force in this contention of the opposite parties either.

coming now to the main question whether the petitioner has established that there has been an infringement of his fundamental rights under Arts. 19 (1) (f) and 31 of the Constitution, I find that the petitioner has relied'' on the registered sale deed dated 13-4-1344 T. E. (1934 A. D.) which was executed in his favour by Sreemati Sarala Simdari Devi regarding this dar-taluk for Rs. 25,000/-.

This sale deed has not been denied by the opposite parties and it clearly shows that it was executed in the house of Brajendra Kumar Das Gupta, the original talukdar in his presence and he signed it as marginal witness as well as an identifying witness. This deed thus shows that Brajendra Kumar Das Gupta had full knowledge of the fact of the execution of the sale deed in favour of the petitioner on the day on which this deed was executed but he never raised any objection to this sale deed.

After the death of Sreemati Sarala Sundari Devi and Brajendra Kumar Das Gupta his only son Amrendra Kumar Das Gupta also recognised the Petitioner as the dartalukdar vide the letters dated 27-10-1948 and 9-10-58 T. E. and para 8 of the petition. Sreemati Sarala Sundari Devi also duly recognised the petitioner as dar-talukdar and the petitioner''s name was recorded in all Government papers and records including those of Sadar Collector''s Office and of revenue department, Government of Tripura.

The learned Advocate for the opposite parties has contended that no rights were created in favour of the present petitioner by this sale deed on account of condition number 14 of the dar-taluk patta dated 1-2-1343 T. E. which runs as follows :

I will not be entitled to execute any deed of transfer such as gift, sale etc. in respect or this dar-taluk or any part thereof in favour of any citizen of different State without written permission of the revenue department or any officer in charge of any office in its stead. Any such action done without permission shall be void.

It is admitted that the present petitioner is not a resident of Tripura State and so the contention of the opposite parties is that the sale deed dated 13-4-1343 T. E. is void. The dar-talukpatta dated 1-2-1343 T. E. is said to be valid as under the Tripura State Adoption of Indian Laws Act, 1359 T. E. (Act No. 13 of 1359 T. E.) the Transfer of Property Act (Act 4 of 1882)'' was made applicable to Tripura State ''mutatis mutandis'' with effect from the date on which Act 13 of 1359 T. E. came into force, and under S. 10, T.P. Act, a condition against allenation in a lease is void if it is for benefit of the lessor or those claiming under him.

According to the contention of the opposite parties the condition restraining alienation in favour of outsiders living in other States is valid and so under this condition the sale deed in favour of the present petitioner is said to be void because no permission of the revenue department was obtained before the actual execution of this sale deed.

Even if the restriction embodied in term No. 14 of the deed dated 1-2-1343 T.E. be deemed to be operative, it is to be considered whether non-compliance of this condition would make the sale deed absolutely void or only voidable.

The mere fact that in this term it has been laid down that any such action without permission shall be void will not make the sale deed absolutely void, for all void contracts have been specifically mentioned in Ss. 19 to 24, Contract Act. Again no right of re-entry was reserved by the lessor on breach of this covenant against alienation.

In - Khetra Nath Bakuly and Others Vs. Baharali and Another, , it was held that a purchaser, from a permanent lessee who had covenanted not to alienate, if recognised by the lessor is not bound by the covenant against alienation. It has further been held in this ruling that where a lessor does not reserve to himself the right of re-entry on breach of a covenant against alienation, the lessor cannot sue the holder of the leasehold for recovery of possession on the breach of the condition; - ''Madar Saheb v. Sannabawa Gajransha'', 21 Bom 195 (T); - ''Udipi Seshagiri v. Seshamma'', AIR 1920 Mad 1006 (U); - ''Prameshri v. V. Shambaga'', 26 Mad 157 (V) and - ''Netrapal Singh v. Kalyan Das'', 28 All 400 (W).

In the present case even the Court of Wards representing the estate of the lessor has not brought forward any suit against the petitioner on the ground of forfeiture under S. 111 (g), T. P. Act, uptill now and so it cannot be urged With any force that the sale deed in favour of the petitioner which is for valuable consideration is void as this right will be deemed to have been waived under S. 112, T. P. Act, vide Chitaleys Transfer of Property Act 1943 edition Vol 3, page 2251 (now (1950) Edition S. 112 N. 1, Vol. 3 p. 1885).

The learned Advocate for the opposite parties has urged that as Sreemati Sarala Sundari Devi had no right to transfer any property in favour of a stranger she could not possibly confer any right on the present petitioner but I think the deed dated 1-2-1343 T.E. did confer on her proprietary rights in the dar-taluk and even if condition No. 14 was violated the present petitioner would get his rights subject, of course, to the result of any suit which might have been brought by the lessor on the ground of forfeiture.

The letter of the Sadar Collector dated 6-8-1344 T.E. was that the revenue department did grant permission (sanction) to the sale in favour of the petitioner as appears from the following:

The prayer for permission of selling to you (S. M. Das Gupta) the dar-taluki lands standing in the name of Sreemati Sarala Sundari Devi and situated at Ishanpur tea garden has; been sanctioned and granted by the memorandum of Hon''ble Revenue Department.

The mere fact that it does not appear from this letter whether the permission had actually been accorded before 13-4-1344 T. E. cannot under the circumstances mentioned above and in view of the law laid down above be sufficient for holding that the sale deed in favour of the petitioner is absolutely void when the petitioner paid a big sum of Rs. 25,000/- as sale consideration and the lessor, his son as well as Sreemati Sarala Sundari Devi throughout recognised the petitioner as dar-talukdar.

The petitioner has been treated as dar-talukdar by the revenue authorities as well as by the Central Excise and the tea department authorities throughout this long period of about 20 years. The letter dated 6-8-1344 T.E. by the Sadar Collector already referred to above shows that Rs. 2307/5/3 were demanded from the petitioner on account of arrears of rent of the said dar-taluk on the basis of the sale deed dated 13-4-1344 T.E.

Similarly the letters dated 14-12-45 T.E. and; 8-9-44 T.E. as well as the notice in certificate case No. 879 of 1343 T. E. go to show that the petitioner was recognised as dar-talukdar by the revenue department and other revenue authorities. The seven rent challans filed by the petitioner go to show that he had deposited about a lac of rupees on account of this dar-taluk with the revenue authorities.

The petitioner was made a judgment-debtor in case No. 99 T of 1343 T.E on account on his being possessor by virtue of purchase. Again the demand certificates dated 29-11-1352 T.E., 19-4-1359 T.E. and 14-9-1950 A.D. and papers of case No. 520 T of 1352 T.E. show that the petitioner was described as the proprietor Ishanpur tea estate and he was also described as such on 3-2-1953, 6-9-1951 and 22/23-10-1951: vide the letters of the above mentioned dates on this record

I have already mentioned above that the petitioner being dissatisfied with the orders dated 20-9-50 and 17-12-50 brought declaratory suit No. 12 of 1951 and in that suit it was held that the entries in the revenue registers or mutation proceedings will not confer any title on any party;

and as the petitioner has proved, his title and it was not denied by the opposite parties there was no cloud on his title on account of these orders within the meaning of S. 42, Specific Relief Act.

This judgment dated 21-5-1952 thus goes to establish that the present petitioner got a title to the estate in question and the opposite parties, also admitted his title.

There is overwhelming documentary evidence on this record i.e. notice dated 7-6-1354 T.E. memorandum dated 3-8-1946 A.D., cess assessment order dated 17-4-1353 T.E. along with an annexure as well as notice from Central Excise dated 2-6-1954 and tea licensing board paper dated 22-3-1955 in which the petitioner has been mentioned as the sole proprietor, to show that the present petitioner owned this estate as dar-talukdar and the judgment in suit No. 23 of 1951 decided by the learned District Judge on 25-3-1955 A.D. also goes to show that the present petitioner was given a decree for Rs. 16,000/- on account of military occupation of this land to which reference has already been made above.

The ''memorandum on claims for compensation'' which has been filed by the petitioner shows that in para 2 -it was mentioned that

Dar-taluk is a subsidiary taluk held under a parent taluk on lease from the proprietor. Mr. Sachindra Mohan Das Gupta is the purchaser of such a taluk holding sale deed executed in 1344 T.E.

Even though the question of title was not decided in so many words by the learned District Judge in this suit, it becomes clear that compensation was given to the petitioner with the consent of the opposite parties which means, that it was taken for granted that the petitioner was the proprietor and he was entitled to the compensation money. I, therefore, come to the conclusion that the present petitioner had fundamental rights in this estate under Art. 19 (1) (f) of the Indian Constitution.

The fact that the petitioner was in possession over the estate in question is also established in this case by overwhelming documentary evidence. I have already pointed out above that the petitioner was paying dues to the Government and attachment and other orders were being issued against him vide the attachment notice dated 16-4-1943 A.D. and orders dated 28-11-52 and 24-4-53.

The petitioner filed the application dated 15-5-1953 to the Sadar Divisional Officer and he further filed another application on 28-7-1953 on which it was ordered that the decision of the Civil suit should be awaited. These documents clearly go to show that the petitioner was actually in possession and that was the reason why the ex parte quota license was granted to him from 1933 onwards upto 1954.

Under S. 16, Tea Control Act, 1933, Export licenses are issued to the owner of a tea garden and the word owner includes "transferee in possession" vide S. 3 (k) of the Tea Act 1953. Nobody ever objected to this license being issued to the petitioner.

The factory license was also issued to the petitioner and para 3 of the Tahasildar''s report dated 22-6-54 shows that possession was not given up by the petitioner willingly and attempts to re-occupy were being made by his manager. The manager appointed by the petitioner filed petition dated 21-6-1954 praying for stay of delivery of possession which means that the petitioner was in possession uptill that date.

The Tripura gazette notifications dated 1-6-51 and 11-11-53 show that requisition was made regarding land for rehabilitation work and these requisitions were addressed to the petitioner. If the petitioner had not been in possession he would not have been mentioned in these notifications.

Under these circumstances if any entries were made in the khatian etc. against the petitioner at the instance of Amarendra Kumar Das Gupta these entries cannot in any way be legally sufficient to extinguish the petitioner''s title and if there is any encroachment on his fundamental rights regarding this property as appears to have been made in this case by wrongfully taking possession by the opposite parties of the estate and also by keeping the petitioner and his manager behind the bars, the latter is certainly entitled to get a writ of mandamus issued against the opposite parties.

Section 9 of Act I of 1327 T.E. merely provides for prior sanction from revenue department regarding transfers of tea gardens and it has been contended that the sale deed in favour of the petitioner violates this provision and so the sale deed should be held to be void.

This statutory provision does not make the alienation absolutely void but the minister could avoid it. I have already mentioned above that no attempt was made to avoid the sale deed in favour of the petitioner during the last 20 years or so and so I think this provision also does not make the sale aeed in favour of the petitioner dated 13-4-1344 T.E. void or inoperative in any way.

The ruling reported in - ''Sreedhar Chandra Roy v. Sm. Kusum Kumari Roy'', AIR 1938 Call 478 (X), on which reliance has been placed by the opposite parties merely lays down that if a term is granted subject to a condition against assignment an assignment by the lessee will be void; but if the restraint is by covenant only, the lessee, by assigning, commits a breach of covenant but the assignment itself is not void, though the landlord can put an end to it as soon as the assignment comes to his, knowledge if the lease contains a power of re-entry.

It has already been pointed out above that Brajendra Kumar Das Gupta had knowledge of the sale deed in favour of the petitioner from the very beginning and his son and the revenue department and the Court of Wards never challenged the sale deed so far and so this ruling does not help the opposite parties in any manner.

The learned Advocate for the opposite parties relied on the petitioner''s appeal to the Hon''ble Chief Commissioner, Tripura dated 2-1-1951 but he did not file any certified copy of this appeal in the present case. This appeal was relied upon to show that the petitioner was not in possession as his dispute with the main talukdar had been going on since 1927.

This appeal was filed at a time when the dispute about the area had arisen and the land of the tea estate which was retained by the dar-talukdar had been reduced from 355 drones and odd to 290 drones and so the petitioner tried to get possession over the entire land and so this appeal does not in any way establish that the petitioner''s title was really fluid.

Just after the reply to this appeal was received by the petitioner the latter brought suit No. 12 of 1951 in the Sub-Judge''s Court, Tripura where in his title 290 drones was admitted on behalf of the defendants. As such I am of opinion that this appeal does not go against the petitioner in any way in this enquiry.

It has next been contended that soma new tenants have occupied portions of the land in question and so the present petitioner cannot get possession over those lands. I think this question need not be decided here as the rights between any alleged tenants in the land in question and between their landlord the petitioner can be determined subsequently under the revenue law.

The argument that the area of the land claimed by the petitioner is not ascertainable also does not appear to be correct. I have already pointed out above that the petitioner has been held to be in possession of 290 drones and odd land of the Ishanpur tea garden and so there is no force in the contention that there is any serious dispute about material facts in the present case.

The rulings reported in - Mohd. Karrar Ali and Others Vs. The State of U.P., ; - Mohammed Ibrahim Vs. Assansol Iron and Steel Workers'' Union and Others, ; - Aswini Kumar Samanta Vs. Manager, Calcutta Electric Supply Corpn. Ltd. and Others, and - ''Kuldeep Mistree v. Special Land Acquisition Collector, Burdwan'', AIR 1955 NUC (Cal) 1789 (Z2), "which lay down that complicated or extended questions of fact which cannot properly be decided without taking evidence cannot be tried in mandamus proceedings has therefore no application to this case.

The rulings reported in - Samarendra Prosad Chakravarty and Another Vs. The University of Calcutta, ; - A.C. Gilbert and Others Vs. Registrar, High Court of Judicature, Allahabad and Others, and - Maqbulunissa and Others Vs. Union of India (UOI) and Another, , which lay down that the writ of mandamus will not issue when it is necessary to try or decide complicated or extended questions of fact will also not be applicable to the present case as it is established from undisputed documents in this case that the petitioner has got a title to 290 drones and odd land of Ishanpur tea estate and he was forcedly dispossessed therefrom and his fundamental rights have thereby been infringed.

An attempt has been made on behalf of the opposite parties to show that the petitioner''s rights were merged in the rights of talukdar as after the death of Sarala Sundari Devi'' and her husband Brajendra Kumar Das Gupta, Amarendra Kumar Das Gupta became the owner of this estate and the rights of the dar-talukdar Sreemati Sarala Sundari Devi were also acquired by her son but this argument assumes that the sale deed in favour of the petitioner dated 13-4-1344 T.E. was void.

I have shown above that this sale deed was valid and it was accepted as such by everybody concerned including the revenue authorities and so this argument also has no force. The petitioner was dispossessed in a highhanded manner on account of certain orders of the executive and so he can be restored possession in the present writ petition vide - ''Mohindar Singh v. State of Pepsu'', AIR 1955 Pepsu 60 (Z6) and where a person in actual possession of land was dispossessed therefrom in exercise of some summary procedure when in reality no summary procedure was provided for by law, the action of the authorities in dispossessing the person in possession by executive action was held to be illegal and without jurisdiction.

It was held that where the Government enters upon a highhanded executive action to dispossess a subject of his property, in such a case a writ petition is a proper and an adequate remedy for the subject against the Government. Direction was issued to the Collector to put the person back into possession of the land. In ''G. Kistareddy v. Commr. of City Police, Hyderabad'', AIR 1952 Hyd 36 (Z7) also, the police authorities, who had dispossessed and deprived the petitioner of his property without any authority of law, were by. a writ ordered to restore the property.

The result is that this writ petition succeeds and a writ of mandamus will be issued to the opposite parties directing them to reinstate the petitioner in his possession over 290 and odd drones of land in Ishanpur tea estate, as the order of the S.D. O. Sadar dated 4-6-1954 taking forcible possession of the dar-taluk covering Ishanpur tea estate on 21-6-1954 and the order dated 6-7-1954 passed by S. D.M., Sadar for arrest of the petitioner on 8-7-1954 were illegal and unconstitutional and ultra vires and they and the order 17th July 1953 are not binding on the petitioner. The petitioner will get Rs. 250/- as costs in this case from the opposite parties who will bear their own costs.